Make Way for the Lone Cyber Ranger and Online Vigilantism

By Jessica Herrera-Flanigan

March 15, 2013

As cybersecurity continues to heat up on the Hill and within the Administration, more policymakers are asking about whether the United States should be conducting cyber offensive activities to address the increasing international threat to cybersecurity. When it was revealed earlier this month that Chinese computers are conducting sweeping attacks on not only our government systems but on our commercial systems as well, and that large amounts of intellectual property and proprietary information potentially has been stolen, many asked: Why shouldn’t we hack back?

Some policymakers have urged taking a cautious approach to cyber offense activities, including House Intelligence Committee Chairman Mike Rogers, R-Mich., who recently said, “If you’re going to punch your neighbor in the nose, best to hit the weight room for a couple of months.” Chairman Roger’s observation is astute. We have to be very careful when we move forward on the cyber offense side because we know that those we attack, especially nation-states, can potentially strike-back and deliver their own blows.

What worries me, however, more than potential government cyber offense activities, is the possibility that private sector entities or individuals may engage in offensive cyber operations. Currently, much, if not all, of what we would envision as cyber offense behavior may be illegal under the Computer Fraud and Abuse Act. Attacks against computers in other nations potentially could violate those nation’s cybercrime laws and put those conducting the activities at risk for prosecution in foreign nations, as unenforceable as a prosecution or judgment might be.

Some have argued that we should allow cyber offense and that laws should be adjusted to assure that companies and individuals are allowed to use all available tools and resources to protect their systems. How that would work, however, is unclear. Would we allow anyone who has had their systems compromised or attacked to strike back? Would only certain activities be acceptable?

The potential for cyber vigilantism could be tremendous with limitations and safeguards in place. The old analogy of the Internet to the Wild West and being the Electronic Frontier could ring true with vigilante justice and a blurring of good-bad actors. The potential for the wrong computers to be counter-attacked could also be significant if there were no rules about who could act. Just imagine, if any individual with more than basic computer knowledge decided to track down someone targeting his system and try to take them down, the possibility is high that an innocent bystander, who’s computer may have been used as a pass-through device, would be harmed. Think of the diplomatic nightmare if that computer was in another country or, even worse, an unfriendly country. I also could see a modern-day version of the movie War Games play out depending on the entities involved. Maybe this example is a bit extreme, but it makes the point – we have to be careful about who and what we allow on the cyber offense side.

What if we created a licensing/certification process for cyber offense? Imagine the equivalent of a cyber bounty hunter or repo man. Keeping with the Wild West analogy, it would be the silver star given to the brave hero by besieged towns in countless Western films. It is an interesting concept. Determining the licensing would be tricky. Giving every state or local jurisdiction authority to issue licenses would not work – the Internet doesn’t stop at the town, county, or state line. It could be a federal process, using the government’s authority to act in interstate commerce. It would be an interesting concept – having the Department of Justice or the Department of Homeland Security oversee a cyber offense licensing program for the private sector. But the Internet does not stop at the U.S. borders either. Maybe we need an international organization (Interpol?) to authorize a certain number of companies to conduct cyber offense. Of course that would be beyond any structures we have seen in the past.

It is a challenging issue but one that will inevitably have to be addressed, especially as more critical data goes online and attacks continue to grow. We’re not likely to see the hero ride off into the sunset on a reliable horse anytime soon.